Lawyers Ask Hepatitis C Jury To Award $2.5 Billion In Nevada Case

By | April 10, 2013

Plaintiffs’ attorneys asked a Nevada state court jury on Monday to put the state’s largest health management organization on the hook for a stunning $2.5 billion punitive damage award in a Las Vegas hepatitis outbreak that lawyers called the largest in U.S. history.

Lawyers Robert Eglet and Will Kemp asked the Clark County District Court civil jury on Monday to assess damages as a percentage of Health Plan of Nevada and Sierra Health Services profits to send a message to other U.S. health care corporations not to put profits ahead of patient safety.

“Pressure from Wall Street and investors causes these companies to put their profits and their shareholder profits above patient safety,” Eglet said after ending his plea to the same civil court jury that last week awarded $24 million in compensatory damages to three plaintiffs.

“Unless this jury speaks loud enough with a large punitive damages verdict, they’re not going to get the message,” Eglet said. “It’ll be business as usual.”

D. Lee Roberts Jr., attorney for the two companies, urged the jury of three men and five women not to be swayed by emotion. He referred to the results of the liability phase of the trial, which began with jury selection almost 10 weeks ago.

“An award of the magnitude, or anything close to the magnitude that plaintiffs are requesting, would be a violation of the instructions of this court and your oath as a juror,” he said.

Roberts said the jury already sent a message to his clients and corporate America, and awarding billions of dollars more as punishment would be neither “reasonable” nor “proportionate.”

“You have already made a difference,” Roberts said. “In phase one, you found that our conduct was despicable. You found fraud, malice or oppression with a conscious disregard. We understand that.”

Eglet said he calculated 15 percent of company profits to arrive at punitive damage figures of a little more than $1.9 billion from Health Plan of Nevada, and about $590,000 from Sierra Health Services. The awards would be on top of the compensatory amount last week.

Bonnie Brunson, 70, was awarded $12 million, and Helen Meyer, 76, was awarded $9 million. Each of them was infected with hepatitis C in 2005 during outpatient endoscopy procedures at a Las Vegas clinic owned by former Dr. Dipak Desai. Brunson’s husband, Carl, 72, was awarded $3 million for loss of consortium.

Health Plan of Nevada and parent company Sierra Health Services – now subsidiaries of publicly traded UnitedHealth Group Inc. – have promised to appeal.

Company lawyers argue they were prevented from showing the jury that company executives didn’t know when they certified Desai as a network physician about complaints that Desai was endangering patients with unsafe endoscopy practices, including boasts that he performed the fastest colonoscopies in the country.

Roberts argued that Desai was responsible for the hepatitis outbreak, not the companies.

Desai, once a powerful member of the state Board of Medical Examiners, wasn’t named in the civil lawsuit. He has denied wrongdoing, declared bankruptcy and surrendered his medical license, but faces trial in state court later this month and federal court next month on separate criminal charges stemming from the outbreak.

Desai’s lawyers have fought for years to prove that he is so incapacitated by strokes and other physical ailments that he is unfit for trial, but state prosecutors accuse him of faking his medical conditions in an attempt to escape prosecution.

Eglet told the jury Monday that after the hepatitis outbreak became public in early 2008, the Southern Nevada Health District in Las Vegas notified some 63,000 people that they were at risk for blood-borne diseases including AIDS and should be tested.

Health investigators later traced hepatitis C infections of nine people to procedures conducted in 2007 at Desai’s endoscopy clinics. Although investigators reported finding hepatitis C in another 105 patients, the cases weren’t conclusively linked to Desai clinics.

Eglet and Kemp also won hundreds of millions of dollars in civil judgments in 2011 against pharmaceutical companies they blamed for supplying recklessly large vials of the powerful anesthetic propofol to Desai clinics. Jurors were told in that case that the large vials were unsafely reused from patient to patient.

Desai and his clinics reached undisclosed settlements with plaintiffs before trial in those cases.

Topics Nevada

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